Steven Calabresi of Northwestern Law School joins Jeffrey Rosen to discuss his new book, The Meese Revolution: The Making of a Constitutional Moment. Calabresi reviews former Attorney General Edwin Meese’s instrumental role in the rise of originalism, and credits Meese with transforming the Department of Justice into an “academy in exile” where originalism was developed and put into practice.
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This episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Gyuha Lee.
Participants
Steven Calabresi is the Clayton J. and Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He worked in the West Wing of President Ronald Reagan’s White House; was a special assistant for Attorney General Edwin Meese III; and clerked for Justice Antonin Scalia on the Supreme Court, and for Judges Robert H. Bork and Ralph K. Winter on the federal courts of appeals. Calabresi has written over 70 law review articles and essays. He is a co-author on three books: The Meese Revolution: The Making of a Constitutional Moment; The Unitary Executive: Presidential Power from Washington to Bush; The Constitution of the United States (3rd edition); and The U.S. Constitution and Comparative Constitutional Law: Texts, Cases and Materials.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources
- Steven Calabresi and Gary Lawson, The Meese Revolution: The Making of a Constitutional Moment (2024)
- Edwin Meese III, Speech to the American Bar Association (7/9/1985)
Excerpt from Interview: Steven Calabresi credits Ed Meese's 1985 ABA speech for launching originalism, later shaped by Scalia's shift to textualism.
Steven Calabresi: I think that General Meese with his July, 1985 ABA speech wanted to start a national conversation and debate about constitutional interpretation. And I think he felt that the court was simply making policy, conservative or liberal, and not making any effort to interpret the law. And he started that debate with the ABA speech that Justices Brennan and Stevens then chimed in again, and then, as you said, Judge Scalia on the DC Circuit proposed the shift to original public meaning textualism from the original intentions of the framers. But what I would say is that the Meese Justice Department from 1985 until Judge Scalia gave that speech in 1986, was looking at original intentions, very much with reference to the text of the Constitution. And there is reference to Textualism in Meese's second speech to the Federalist Society.
I think in November of 1985 units of the Justice Department that were applying originalism were doing it in a textualist way. One example is there was a proposal in Congress to create a national lottery to raise money. And General Meese asked the Office of legal Counsel whether that would be constitutional, and Chuck Cooper, who was the Assistant Attorney General in charge of the Office of Legal Counsel, produced an OLC memo that essentially went through the enumerated powers of Congress, noted that there was no enumerated power to establish a national lottery in a very textual analysis, and concluded that such a lottery would be unconstitutional. And at that point, President Reagan indicated he would veto a national lottery if one were created, if Congress were to pass such a bill, and the bill died in Congress. So, I think that while General Meese's ideas about originalism evolved over time, and while Justice Scalia contributed hugely to them, I think that General Meese was there on the first big point.
And Judge Scalia had not actually spoken about originalism at all prior to this June, 1986, speech to the Justice Department. He'd neither spoken about it, nor written about it. Even today, I would say that there are different flavors of originalism among the justices on the Supreme Court and among law professors. Some people attach more weight to original intentions, and sometimes in the form of early practice, for example, or the original expected applications of a text. Other people like Scalia and frankly myself, are more firmly textualist and attach less weight to original expected applications. So part of the reason why, even though there are six justices on the Supreme Court, who to some extent think originalism is relevant, they reach different conclusions. Some of it is that some of them are more textualist, some of them are more intentionalist and that's an enduring tension in originalism.
The final thing I would note is that, Judge Scalia didn't know when he was giving this speech that there was a vacancy on the Supreme Court, but two days later, he was asked to interview with President Reagan and Reagan offered him a seat on the Supreme Court. And I think that General Meese, having recommended Scalia already to President Reagan, was inclined to greatly respect his opinion that Textualism rather than Intentionalism was the way to go.
Excerpt from Interview: Steven Calabresi credits Ed Meese for pioneering originalism and inspiring Don McGahn, whose efforts under President Trump completed a “constitutional revolution” through key Supreme Court appointments.
Steven Calabresi: I think it fulfilled our wildest expectations. I don't think we foresaw everything at all, the extent to which we would succeed. We thought there was a very serious danger that Scalia would be the lone originalist on the Supreme Court and that he would be a voice in the wilderness for 30 years. And of course, he was a voice in the wilderness for a while, but he began getting more and more allies over time. Part of that is because Ed Meese kept working for originalism after his tenure as Attorney General ended. He was a good friend of George H. W. Bush, President Reagan's vice president. He urged President Reagan to pick Bush as his running mate.
And when Meese resigned in August of 1988, he encouraged President Reagan to appoint Dick Thornburg as Attorney General because he knew Thornburg was a good friend of George H. W. Bush, and he thought Bush would keep him on. And in fact, Thornburg was one of the very, very few Reagan cabinet secretaries who was George H. W. Bush did keep on. Bush also funded staffers for Vice President Bush's counsel, C. Boyden Gray. And C. Boyden Gray eventually hired a Meese, the Justice Department alumna, Lee Liberman Otis, to do judicial selection for the first Bush administration.
And President George H. W. Bush's instructions to Boyden Gray when he took office were, "Keep everything at the Justice Department the same. Keep judicial selection the same, but stop giving all those controversial speeches." And that reveals both the strengths and the weaknesses of the first President Bush. He knew good policy, but he didn't know how to win the war of ideas. But one has to credit Lee Liberman Otis for the appointment of Justice Clarence Thomas, which I think she was principally responsible for, and for the appointment of former Penn Law professor Morris Arnold to the Eighth Circuit, and the appointment of some very distinguished judges like Dennis Jacobs to the Second Circuit, and Ray Randolph to the DC Circuit, as well as others.
But Meese kept at it even after that. During George W. Bush's presidency, George W. Bush campaigned saying he wanted to appoint Supreme Court justices like Antonin Scalia, and that was what conservatives had been led to expect. But it turned out when the vacancies appeared in 2005, that the people George W. Bush thought were like Justice Scalia were his White House counsel, Alberto Gonzalez, and then his second White House counsel, Harriet Myers. Neither of them were originalists in any serious sense of the word, and they also didn't exhibit the kind of excellence that Meese and Reagan had expected of judges.
So Ed Meese gave Andy Card, Bush's White House Chief of Staff, a list of four names of possible Supreme Court appointees. John Roberts, Sam Alito, Michael McConnell, and Michael Luttig, who was then on the Fourth Circuit. And they were all then sitting Circuit Court of Appeals judges. Well, George W. Bush, when Sandra Day O'Connor appointed, nominated John Roberts to that seat, and there was such unanimous applause that when Chief Justice Rehnquist died a few months later, he elevated Roberts to be the Chief Justice nominee, and he tried to nominate Harriet Myers to be an Associate Justice. And Judge Robert Bork and conservatives throughout the Federalist Society all rebelled in outrage, and President Bush had to withdraw the Myers nomination, and at Meese's suggestion, he nominated Sam Alito instead. And Alito, of course, was an alumnus of the Meese Justice Department.
So Meese was directly involved in the appointments of Roberts and Alito. With respect to President Trump, the most important thing that General Meese did was in the mid-1980s, a guy named Don McGahn, who was a law student, came to a National Lawyers Convention and ended up having lunch with Ed Meese and Ken Cribb and having a two-and-a-half-hour conversation with them. And he was so amazed that a former Attorney General and his Chief of Staff would devote so much time to talking to him as a law student that he became a steadfast member of the Federalist Society. And then Don McGahn turned out to be Donald Trump's campaign counsel in 2016 and was his first White House counsel in 2017 and 2018.
And he said in a speech that he was accused of outsourcing judicial selection to the Federalist Society, but that in fact, instead, he had hired Federalist Society members to work in the White House Counsel's Office, and he thought that was insourcing judicial selection, not outsourcing it. So I'd say that Don McGahn, in picking Justices Gorsuch and Kavanaugh and putting Justice Barrett on the list of names to be seriously considered for the Supreme Court, was consciously trying to complete the revolution that Ed Meese began. And I think he succeeded. And that's why I think that the 2022 and 2023 Supreme Court terms were so momentous. I think that Don McGahn and President Trump completed the constitutional revolution that Meese began, but Meese theorized the revolution. He got it started. He nurtured it with the appointments of Alito and Roberts, and he inspired McGahn to then complete it. And that's why I think he deserves credit for essentially a constitutional moment.
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